Orissa High Court
Pravat Kusum Mandal vs Odisha State Medical Corporation on 5 October, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
WP(C) No.13096 of 2019
Pravat Kusum Mandal ...... Petitioner
-Versus-
Odisha State Medical Corporation, ...... Opposite Parties
Bhubaneswar & another
For Petitioner - Ms. D. Mahapatra, Advocate
For Opposite Parties - Mr. N. Barik, Advocate
(for Opposite Party No.1)
Mr. S.N. Pattnaik, AGA
(for Opposite Party No.2)
CORAM: JUSTICE SANJAY KUMAR MISHRA
Date of Hearing: 13.07.2023 and Date of Judgment: 05.10.2023
_________________________________________________________
S.K. Mishra, J.
The Petitioner has preferred the Writ Petition being aggrieved by
Office Order dated 25.07.2019 (Annexure-3), vide which his services were
terminated w.e.f. 25.07.2019 (Fore Noon).
2. The factual matrix of the case, in nutshell, is that the Opposite
Party No.1 i.e. Odisha State Medical Corporation Limited, shortly, 'the
Corporation', which is being controlled by the State Government,
published an Advertisement on 26.10.2016 inviting online applications
from eligible candidates for filling up different posts of the Corporation,
including the post of Manager-Procurement (Drugs and Surgical), which
was a single unreserved post. The Petitioner, who was previously working
under the VIMSAR since 01.04.2011, having the requisite qualification and
experience, was selected to be appointed as Manager-Procurement (Drugs
and Surgical). He was issued with the order of appointment on 10.03.2017,
pursuant to which he joined in the said post on 14.03.2017. In Clause 1 of
the said appointment order, it has been mentioned that the appointee would
be on probation for a period of one year from the date of his joining and the
period of probation can be extended for a further period of one year or
more as per the satisfaction of the Authority. Further, it was mentioned
therein that during the period of probation, the services of the Petitioner can
be terminated by the Appointing Authority on issuing one month's notice
or payment of one month's salary in lieu of the said notice period.
It is further case of the Petitioner that immediately after his
appointment, the Odisha State Medical Corporation Ltd Employees'
Service Rules, 2017, shortly, Service Rules, 2017, came into force with
effect from 22.09.2017 and the same is applicable to all the employees
recruited by the Corporation i.e. the employees, who are already in the roll
of the Corporation by the said time.
As per Sub-Rule 10.1 of Rule 10 of the Service Rules, 2017, all
the employees directly recruited by the Corporation shall be on probation
for one year from the date of joining. Sub-Rule 10.2 of Rule 10 of the said
Rules prescribes that the Appointing Authority may extend the probation
period for a further period of one year at a time considering the ability,
suitability and performance of the employee and inform the employee
concerned the reason for such extension. Sub-Rule 10.3 of Rule 10
prescribes that the Appointing Authority shall regularize the employee
concerned in the post on successful completion of the probation period on
the basis of his ability, suitability and performance by a written order. Sub-
Rule 10.4 of Rule 10 prescribes that if during the period of probation and
extended period thereof, the performance, progress and conduct of the
Petitioner are not found satisfactory or up to the standard required for the
post, the probation shall be cancelled and he shall be terminated from
service by giving him one month's gross salary or one month's salary in
lieu thereof.
It is further case of the Petitioner that as per Clause 1 of the terms
of appointment, the probation is for a period of one year from the date of
joining, which can be extended for a further period of one year or more as
per the satisfaction of the Authority. But as per Rule 10 of the Service
Rules, 2017, it was settled that the probation is for one year from the date
of joining and can be extended to a further period of one year at a time
considering the ability, suitability and performance of the employee and in
that case the concerned employee shall be informed about such reason for
extension.
Pursuant to appointment letter dated 10.03.2017, as the Petitioner
joined on 14.03.2017, his period of probation of one year ended on
13.03.2018. Therefore, on completion of the said period of probation of one
year, undisputedly no such order extending the period of probation has
been passed by the Authority concerned. As required under Clause 1 of the
appointment order, by the time the Petitioner completed his one year of
probation, the Service Rules, 2017 came into force with effect from
22.09.2017. As per Rule 10 of the Service Rules, 2017, no such order has
been passed before 14.03.2018, extending the period of probation.
Therefore, in absence of any order of extension of probation, with reasons
to do so, it is to be inferred that the Petitioner, after completion of one year,
is deemed to have been confirmed in service w.e.f. 14.03.2018.
On 12.03.2019, by which time the Petitioner had already
completed two years of service, an office order was issued in respect of
five employees, including the present Petitioner, extending their period of
probation from 14.03.2019. Neither any reason was indicated in the said
office order to do so, as required under Rule 10 of the Service Rules, 2017
nor the Petitioner was informed about such reason for extending the
probation period. Further, there is no such provision in the Service Rules,
2017 for extending the period of probation more than two years.
Immediately thereafter i.e. on 08.04.2019, the Petitioner was asked for an
explanation regarding discrepancy in the experience certificate submitted
by him at the time of joining and over lapping in the period of service,
where it has been stated that the Petitioner's experience certificate in
VIMSAR shows that he was working there since 01.04.2011, though he
joined in the Corporation as Senior Pharmacist on 12.04.2016 with due
relieve order issued by the VIMSAR, Burla dated 11.04.2016.
Pursuant to the said communication seeking for explanation, the
Petitioner submitted a detailed explanation on 16.04.2019 stating therein
about the discrepancy and over lapping in the period of service indicating
therein that though being relieved from VIMSAR on 11.04.2016, he joined
as Senior Pharmacist, but he left the post on 23.04.2016 and joined back in
the same contractual post under VIMSAR. On his request, the said period
from 12.04.2016 to 23.04.2016 i.e. 12 days was sanctioned as leave by kind
consideration of the VIMSAR Authority. The Petitioner further explained
that for a period of 12 days he has neither claimed any pecuniary benefits
from the Corporation nor the said over lapping period of 12 days has been
claimed as experience for selection to the present post under the
Corporation. As after submitting such explanation on 16.04.2019, no such
further order was passed by the Corporation, it was presumed by the
Petitioner that the issue has been set at rest for all purposes.
While the matter stood thus, an Office Order was issued on
25.07.2019 by the Managing Director of the Corporation resorting to the
terms and conditions stipulated in Clause 1 of the appointment letter, by
which the services of the Petitioner was terminated w.e.f. 25.07.2019 with
one month's salary in lieu of the notice period.
It is further case of the Petitioner that as the Office Order dated
12.03.2019, vide which the period of probation was extended for further
period of another one year w.e.f. 14.03.2019, did not disclose any reason to
do so in terms of the Service Rules, 2017 of the Corporation, the same is
completely invalid. The impugned Order dated 25.07.2019, as at Annexure-
3, treating the Petitioner as probationer after he completed two years four
months of service, is illegal and arbitrary. The same has been passed with
oblique motive to remove the Petitioner from the post and to appoint
somebody else, as the Petitioner was not amenable to undue and
undesirable pressure and for some other oblique purposes. Hence, the
impugned Order dated 25.07.2019, being illegal and arbitrary, is liable to
be quashed.
3. Being noticed, the Opposite Party No.1-Corporation has filed a
Counter Affidavit taking a stand therein that the Corporation has been
incorporated on 08.11.2013 under the Companies Act, 1956, in pursuance
of the Government of Odisha Resolution dated 26.06.2013. It is stated that
the Petitioner was selected for appointment as Manager-Procurement
(Drugs & Surgical) on terms and conditions that he will be on probation for
one year from the date of joining and the probation period may further be
extended for another one year or more as per the satisfaction of the
authority. During the period of probation, the services can be terminated by
the Appointing Authority on one month's notice or in lieu of, one month's
salary. Depending on satisfactory performance and conduct during the
probation, the continuance and regularization in the post will be decided.
The Petitioner joined in service on 14.03.2017 After Noon in the office of
the Corporation.
It has further been stated that Odisha State Medical Corporation
Ltd. Employees' Service Rules, 2017 was framed and the same came into
force during the year, 2017, which is applicable to all employees recruited
by the Corporation. As per the Order dated 29.06.2018 of the then
Managing Director, the activities of the Petitioner were closely monitored
for another six months instead of confirming him in the post, as the
individual performance was far from satisfactory. Further, the probation of
the Petitioner was extended vide Order dated 09.01.2019 as per the terms
and conditions laid down in Clause 1 of the appointment order with
intimation to the Petitioner. It has also been stated that the extension of
probation for six months was for the reason that the Petitioner's probation
for one year from the date of joining was not satisfactory and such
extension was granted only to reassess his performance. As the
performance of the Petitioner was closely monitored and it was observed
that his performance is far from satisfactory, it was decided to extend his
probation instead of confirming him in the said post. Such extension of
probation for one year was not confined to the present Petitioner only.
Same was including four other employees whose probation period were
also extended w.e.f. 14.03.2019 vide the same Order dated 12.03.2019. The
said fact was communicated to the employees concerned vide Memo dated
12.03.2019.
It is stand of the Opposite Party No.1-Corporation that law is well
settled that in absence of maximum period of probation specified in the
letter of appointment, if the employee continues beyond the probation
period, cannot be deemed to be confirmed. A probationer does not have a
right over the post. His position therefore, is similar to a temporary
employee. In other words, employee's service can be terminated on the
basis of overall assessment of the performance by the employer.
It is further stand of the Corporation that with regard to
performance of the Petitioner, the same being far from satisfactory, Show-
Cause notices were issued to him previously. Also W.P.(C) No.8471 of
2019 was filed by one Sunil Kumar Mishra before this Court making some
allegations against the Petitioner. However, the services of the Petitioner
were brought to an end as per Clause 1 of the terms and conditions of the
appointment order and not on the basis of allegations made by Sunil Kumar
Mishra.
4. In response to the Counter Affidavit, a Rejoinder Affidavit has
been filed by the Petitioner reiterating the stand taken in the Writ Petition.
That apart, it has been pleaded in the Rejoinder that as per the
advertisement the recruitment to the post was made in the regular scale of
pay. There was no stipulation for appointment on probation or on
contractual basis so far as the post of Manager-Procurement (Drugs &
Surgical) is concerned.
The Petitioner was selected in a regular recruitment process. An
order of appointment was issued in his favour vide Annexure-1. Though
there was no such norm prescribed in the advertisement, while issuing the
appointment letter it was indicated therein that during the period of
probation of the Petitioner, his services can be terminated by the
Appointing Authority on one month's notice or in lieu of, one month's
salary. It was further indicated therein that depending on satisfactory
performance and conduct during the probation period, the continuance and
regularization of the post will be decided. However, the Petitioner having
no choice, had accepted the same and joined under the Opposite Party
No.1. Reiterating the provisions under Rule 2 as well as Rule 10 of the
Odisha State Medical Corporation Ltd. Employees' Service Rules, 2017,
which has been annexed to the Rejoinder Affidavit as Annexure-5, it has
been stated that as per Sub-Rule 2.1 of Rule 2 of the Service Rules, 2017,
the same is applicable to all the employees appointed before the said Rules
came into force. So far as Sub-Rule 2.1 in Rule 2, the same is applicable to
the employees engaged for a limited tenure. Since the Petitioner was
recruited by the Corporation through a recruitment process, Sub-Rule 2.1 in
Rule 2 shall govern the service condition of the Petitioner, though he was
recruited before the said Rules came into force.
As per Sub-Rule 10.1 in Rule 10 of the Service Rules, 2017, the
period of probation of an employee should be for one year from the date of
joining and in terms of Sub-Rule 10.2 in Rule 10, the period of probation
can be extended for a further period of one year considering the ability,
suitability and performance of the Petitioner and the employee concerned
has to be intimated the reason for such extension. Sub-Rule 10.3 in Rule 10
of the Service Rules, 2017 specifies that on completion of the probation
period i.e. two years, and considering the ability, suitability and
performance of the employee, the Appointing Authority shall regularize the
service of the concerned employee by a written order. Though in the
present case, the order of appointment was issued on 10.03.2017, on
completion of one year probation period, no such order of extension of
further period of one year was issued in favour of the Petitioner. However,
on completion of two years probation period, a letter was issued under
Annexure-2 extending the probation period for a further period of one year
and the reason thereof has not been intimated to the Petitioner, which is
clearly in contravention of the provisions enshrined under Sub-Rule 10.2 of
Rule 10 of the Service Rules, 2017. Thus, the Petitioner's service is
deemed to have been regularized as the service of the Petitioner was found
to be satisfactory and suitable to hold the said post within the period of two
years of probation as per Sub-Rule 10.2 in Rule 10 of the Service Rules,
2017. While the Petitioner was going to complete three years of probation,
he got the letter of termination, as at Annexure-3 and the reason thereof has
not been assigned in the said letter. Since after completion of the said
probation period the Petitioner is deemed to be a regular employee of the
Corporation, while taking any disciplinary action, the Authority concerned
has to follow the procedure as per the Rules. The most important feature is
to give reason for termination and before issuing an order of termination,
the principles of natural justice is to be followed, which was not done so far
as the Petitioner is concerned. Hence, the order of termination is not
sustainable and liable to be quashed.
It is further stated in the Rejoinder that the Service Rules, 2017
came into force on 22.09.2017. Applicability of the said Rule is having
retrospective effect. Thus, Clause 1 of the order of appointment cannot
override the said statutory Service Rules, 2017. Law is well settled that any
Guideline/Notification, which is not in consonance with the statute, has no
legal sanctity and cannot be applied. It has further been stated that the
Corporation in its Counter has admitted as to applicability of the Service
Rules, 2017 to all the employees recruited by the Corporation. Hence,
Clause 1 contained in the order of appointment of the Petitioner has no
force to be implemented as the same is in clear violation of Service Rules,
2017. Further, as required under Sub-Rule 10.2 in Rule 10 of the Service
Rules, 2017, the reason for such extension was never communicated to the
Petitioner. Thus, the presumption is that the Authorities have found that the
conduct of the Petitioner is satisfactory and up to the standard required for
the post. Under such circumstances, they cannot take a plea that applying
Clause 1 of the order of appointment, the services of the Petitioner can be
terminated by giving him one month's salary in lieu of the notice period.
It is further stand of the Petitioner that in view of Rule 10 of the
Service Rules, 2017, the Authorities have no competency to extend the
probation period after two years. It has further been stated in the Rejoinder
Affidavit that the Corporation has admitted that the Authorities have taken
into consideration the Writ Petition filed by one Sunil Kumar Mishra, but
no show cause notice was issued before the order of termination was
passed vide Annexure-3. It has been clarified that the case filed by Sunil
Kumar Mishra is no way connected with the service of the Petitioner.
However, with an oblique motive, Mr. Mishra made a complaint against
the Petitioner, which was enquired into and the Inquiry Report was
submitted on 29.07.2019 i.e. much after his termination. Thus, before the
enquiry was conducted on the allegation of Sunil Kumar Mishra, which
influenced the mind of the Authority for issuance of termination order, had
the Opposite Party No.1 waited for the final outcome of the said enquiry,
the decision could have been otherwise. To demonstrate such averment
made in the Rejoinder, copy of the inquiry report has been annexed to the
Rejoinder as Annexure-6. It has also been clarified in the Rejoinder that as
per the said Inquiry Report, it was found by the Enquiring Officer that the
allegation of Petitioner working in two Government Organizations to be
incorrect, as he was relieved from the VIMSAR on 14.03.2017 and joined
in the present post on 14.03.2017, though the letter was issued on
16.03.2017, it cannot be said that the Petitioner was working in two
different organizations.
5. Ms. Mahapatra, learned Counsel for the Petitioner, drawing
attention of this Court to the advertisement for recruitment dated
26.10.2016, as at Annexure-4, submitted that the said advertisement was
made by the Corporation inviting online applications from eligible
candidates for filling up the posts created for the Corporation. The post of
Manager-Procurement (Drugs & Surgical) was a single post meant for
unreserved category. Being selected by facing a due regular selection
process in terms of the said advertisement, though there was no such
mention in the advertisement that the Manager-Procurement (Drugs &
Surgical) is to be appointed first on probation basis, the Petitioner was
appointed as probationer. The Petitioner had no other way than to accept
the same and report for duty. Rather, it was mentioned in the said
advertisement that the selected candidates will be fitted in Pay Band-3
(Rs.15600-39100) with Grade Pay of Rs.5,400/- with further stipulation
that the D.A. and other allowances will be paid as per Corporation norms
and the recruitment to the said post shall be made in the regular scale of
pay.
Ms. Mahapatra submitted that vide the advertisement dated
26.10.2016, it was advertised to fill up the posts like Accountant, Assistant
(HR & Admn.), Junior Assistant (MD's Secretariat) and few other posts
initially on contractual basis. But, so far as the post of Manager-
Procurement (Drugs & Surgical), there was no such mention in the said
advertisement. Rather, it was clearly mentioned that the recruitment to the
said post shall be made in the regular scale of pay under the heading "Scale
of Pay". She further drew attention of this Court to Sub-Rule 2.1 in Rule 2
of the Service Rules, 2017, which came into force w.e.f. 22.09.2017. From
the provisions under the said Rules, it is amply clear that the employees,
who are on the Roll of the Corporation as on 22.09.2017, will be governed
by the Service Rules, 2017. Relying on Sub-Rule 3.25 in Rule 3 of the
Service Rules, 2017, which defines 'employee', she submitted that as per
the said definition, an employee means any person under the employment
of Odisha State Medical Corporation Ltd other than casual or contingent
workers and includes a person on deputation to the Corporation whose
salary is chargeable to the funds of the Corporation. Ms. Mahapatra further
submitted that there is no dispute with regard to the applicability of the
Service Rules, 2017 to the Petitioner. She further drew attention of this
Court to Rule 10 of the Service Rules, 2017, which details as to how an
employee is to be treated when directly recruited by the Corporation and
submitted that in terms of the said Rule, an employee has to be on
probation for one year from the date of joining, which may be extended for
a period of further one year at a time, considering his ability, suitability and
performance. If it is so extended, the concerned employee has to be
informed about the reason for such extension. On successful completion of
probation period, the Appointing Authority shall regularize the employee
concerned in the post he/she is holding by a written order.
Ms. Mohapatra submitted that in Paragraph 10 of the Counter
Affidavit it has been stated that performance of the Petitioner was far from
satisfactory and show cause notices were issued previously. Also one Sunil
Kumar Mishra preferred W.P.(C) No.8471 of 2019 making allegations
against the Petitioner. But to the said effect the Petitioner was never noticed
either about his unsatisfactory performance or any show cause notice was
issued by the Authority concerned, as has been falsely alleged in Paragraph
12 of the Counter Affidavit. Though it has been demonstrated in the
Counter Affidavit that this is a case of termination simpliciter and the
service of the Petitioner was brought to an end simply invoking the
provisions in Clause 1 of the appointment letter dated 10.03.2017, but
conduct of the Management well proves that such action was taken against
the Petitioner as a punitive measure because of such allegation made by
one Sunil Kumar Mishra, so also without issuing any show cause notice as
to his poor performance or any kind of misconduct and it is not a case of
termination simpliciter.
Ms. Mahapatra further submitted that as per Rule 10 of the Service
Rules, 2017, since there was no communication made to the Petitioner for
extension of his probation period beyond completion of one year from the
date of his joining and as such communication was made much after
completion of two years of probation without indicating the reason thereof,
the same being contrary to the provisions enshrined under Rule 10 of the
Service Rules, 2017, deserves interference by this Court. It is submitted
that a stand has been taken in Paragraph 9 of the Counter Affidavit that as
per Order dated 29.06.2018 of the then Managing Director, the activities of
the Petitioner were closely monitored for another six months instead of
confirming him in the post as the individual performance of the Petitioner
was far from satisfactory. Further, in Paragraph 12 of the Counter
Affidavit, the same stand has been reiterated as to performance of the
Petitioner so also alleged issuance of show cause notice to the Petitioner.
But to substantiate such false stand, no documents have been appended to
the Counter Affidavit. The pleadings made in Paragraphs 9 and 12 in the
Counter Affidavit are not only false but also have been so pleaded
intentionally to mislead this Court.
Ms. Mahapatra further submitted that law is well settled that
where the appointment is made on probation for a specific period and the
employee is allowed to continue in the post after expiry of probation period
without any specific order as to extension of probation period or
confirmation, the probationer would be deemed to be confirmed in the said
post, provided the Rules do not provide contrary to it. To substantiate her
submission, so also claim of the Petitioner, Ms. Mahapatra relied on the
judgments of the Apex Court in State of Punjab v. Dharam Singh,
reported in AIR 1968 SC 1210, Om Parkash Maurya vs. U.P.
Cooperative Sugar Factories Federation, Lucknow and others, reported
in 1986 (Suppl.) SCC 95, State of Gujarat v. Akhilesh C. Bhargav and
others, reported in (1987) 4 SCC 482, M.K. Agarwal v. Gurgaon
Gramin Bank and others, reported in 1987 (Supp) SCC 643 and Wasim
Beg v. State of U.P. and others, reported in (1998) 3 SCC 321.
6. Mr. Barik, learned Counsel for the Corporation, reiterating the
stand taken in the Counter Affidavit, submitted that as the performance of
the Petitioner was far from satisfactory, rightly the same was extended
further. During the extended period of probation also when the
performance of the Petitioner was found to be unsatisfactory, rightly the
Petitioner's services were brought to an end in terms of Clause 1 of his
letter of appointment by giving him one month's pay in lieu of the notice
period. Further, a query being made by the Court, Mr. Barik fairly admitted
that, as per the instruction received, there is no document to demonstrate
before this Court as to any communication made to the Petitioner in writing
as to his poor performance. Mr. Barik also failed to apprise this Court any
valid reason as to why no communication was made to the Petitioner to the
said effect till completion of two years of probation period and thereafter
also. He fairly admitted that though there was a stipulation in the
appointment order dated 10.03.2017 of the Petitioner that he will be on
probation for one year from the date of joining, which can be extended for
a further period of one year or more as per the satisfaction of the Authority,
even after completion of one year of probation period from the date of his
joining, no further communication was made to the Petitioner extending the
said period of probation beyond one year and also beyond two years from
the date of such appointment. On being asked by this Court, Mr. Barik
failed to explain as to the reason for not doing so by the Authority
concerned though repeatedly it has been mentioned in various Paragraphs
of the Counter Affidavit filed by the Corporation that the performance of
the Petitioner during his probation period was far from satisfactory.
However, Mr. Barik submitted that there is no infirmity in the impugned
order vide which Petitioner's services were brought to an end in terms of
Clause 1 of his appointment order. The Petitioner being a probationer has
no right to ask for being absorbed in the said post automatically, as has
been prayed in the Writ Petition. There being no merit in the Writ Petition,
the same deserves to be dismissed in limine. To substantiate his
submission, Mr. Barik relied on the judgments of the Apex Court in G.S.
Ramaswamy and others v. The Inspector-General of Police, Bangalore,
reported in AIR 1966 SC 175, State of Uttar Pradesh v. Akbar Ali Khan,
reported in AIR 1966 SC 1842, High Court of M.P. through Registrar v.
Satya Narayan Jhavar, reported in (2001) 7 SCC 161, Registrar, High
Court of Gujarat and another v. C.G. Sharma, reported in (2005) 1 SCC
132 and Kazia Mohammed Muzzammil v. State of Karnakata and
another, reported in (2010) 8 SCC 155.
7. From the pleadings and documents on record, it is undisputed that
an advertisement was issued on 26.10.2016 for recruitment to fill up
various posts created by the Corporation and one of such posts was
Manager-Procurement (Drugs & Surgical) and there being one such post, it
was meant for unreserved category. The Petitioner, who was working in
VIMSAR, being eligible for the said post, applied through online and got
selected, so also appointed in the said post vide Order dated 10.03.2017.
There was no such mention in the advertisement dated 26.10.2016 that the
selected candidate for the post of Manager-Procurement (Drugs &
Surgical) is to be first appointed as a probation. Rather, it was clearly
mentioned in the advertisement that such post shall be made in the regular
scale of pay. But in the letter of appointment dated 10.03.2017, it was
indicated that the appointment of the Petitioner is purely temporary. He
will be on probation for one year, which can be extended for further period
of one year or more as per the satisfaction of the authority. It has further
been mentioned that during the period of probation the services of the
Petitioner can be terminated by the Appointing Authority on giving one
month's notice or payment in lieu of the said notice period. For ready
reference, the relevant portions of the advertisement dated 26.10.2016, so
far as the post of Manager-Procurement (Drugs and Surgical), so also
Clause 1 of the letter of appointment dated 10.03.2017 of the Petitioner are
extracted below:
"Advertisement for Recruitment
No.2/OSMC/REC/HR/2016 Dated-26/10/2016
Odisha State Medical Corporation Ltd. (OSMC),
Bhubaneswar invites online applications from eligible candidates
for filling up the following posts created for the Corporation:
Sl. Name of the Post Total Nos. Reservation Pay Band & Grade
of posts Category Pay
No
UR-1 Pay Band -3 with
1 Senior Manager - IT 1 Grade Pay of Rs.
6,600/-
Pay Band -3 with
Senior Manager- UR-1 Grade Pay of
Rs. 6,600/-
Pay Band -3 with
Manager- UR-1 Grade Pay of Rs.
5,400/-
(Equipment)
Pay Band -3with
Manager- UR-1 Grade Pay of Rs.
5,400/-
(Drugs & Surgical)
Pay Band -2with
Asst.Manager- UR-1 Grade Pay of Rs.
4,600/-
(Equipment)
Pay Band -2 with
Asst. Manager- UR-1 Grade Pay of Rs.
6 Procurement (Drugs 1
4,600/-
& Surgical)
Pay Band -2 with
7 Accountant 1 UR-2(W-1) Grade Pay of Rs.
ST-1 4200/-
Pay Band -2 with
8 Assistant (HR & UR-1 (W-1) Grade Pay of Rs.
4200/-
UR-1(W-1) Pay Band -1 with
9 Jr. Assistant (MD's Grade Pay of Rs.
1900/-
N.B. UR means unreserved. W means Women
Interested applicants should submit the online application forms
which will be available in the website www.osmcl.nic.in from
27/10/2016 till 19/11/2016. Timely and correct filling up of the
application forms and online submission are the sole responsibility of
the candidates.
For details of the posts like scale of pay, eligibility criteria
selection modalities, general instructions/ information, guideline for
filling up of the online application form etc., the applicants may visit
the OSMC website www.osmcl.in.
The earlier recruitment process for the posts indicated against
Sl.3,4,5 and 6 floated in Advertisement No.1 OSMC/HR/2014, dated
15.12.2014 is hereby cancelled.
Sd/-
Managing Director
Odisha State Medical Corporation"
"Manager-Procurement (Drugs and Surgical).
Nos. of post: 01- Unreserved (UR)
Terms of Reference (Job Responsibility) :
S/he will be responsible for --
• Preparation of procurement plan for OSMC.
• Preparation of Standard Bidding Documents.
• Managing the tendering processes.
• Bid evaluation, award of contract and post - contract
management.
• Any other work as will be assigned by appropriate authority.
Eligibility criteria: Bachelor in Pharmacy (with minimum 60%
marks) with 3 years of post - qualification experience in procurement
of drugs and surgical / healthcare commodities.
However relaxation of 10% marks will be given for SC/ST category
candidates.
Age limit : The maximum age limit for the post is 40 years as on the
last date for submission of application form i.e. 19/11/12016.
However relaxation of age up to 10 years for PWD candidates, 5
years for SC/ST/SEBC/Women candidates shall be allowed.
Relaxation of age in case of ex-service men will be made as per
Government norm.
All other mandatory general eligibility conditions as laid down in the
"General instructions / Information" shall be applicable.
Scale of Pay: Pay Band - 3 (Rs. 15600-39100) with Grade Pay of
Rs.5400/-. DA and other allowances will be paid as per Corporation
norms. Recruitment to this post shall be made in the regular
scale of pay."
Extract from the letter of appointment dated 10.03.2017
"Odisha State Medical Corporation Ltd. is pleased to offer you
the post of Manager-Procurement (Drugs & Surgical) in the
Corporation on the following terms and conditions.
1. The appointment is purely temporary. You will be on probation
for one year from the date of joining. The probation period can
be extended a further period of one year or more as per
satisfaction of authority. During the period of probation, your
services can be terminated by the Appointing Authority on
payment of one month's notice or in lieu of the same with one
month's salary. Depending on satisfactory performance and
conduct during the probation period, your continuance and
regularization in the post will be decided. The probation
period will be counted towards normal annual increment, leave
and seniority. On successful completion of probation, you will
be confirmed in the concerned post."
(Emphasis supplied)
8. It is the admitted case of the Parties that immediately after
appointment of the Petitioner, the Odisha State Medical Corporation Ltd.
Employees' Service Rules, 2017 came into force w.e.f. 22.09.2017. In
terms of Sub-Rule 2.1 of Rule 2 of the Service Rules, 2017, the same is
applicable to the Petitioner, he being an employee of the Corporation as on
the said date i.e. 22.09.2017 and not being a casual or contingent worker.
Rather, he was appointed as such pursuant to an advertisement dated
26.10.2016 against posts created for the Corporation. As it is not disputed
as to applicability of such Service Rules, 2017 to the Petitioner and it has
not been disputed by the Corporation in its Counter Affidavit as to non-
applicability of Rule 10 of the Service Rules, 2017 to the Petitioner, this
Court is of the view that the said Service Rules, 2017, including Rule 10,
which deals with probation and confirmation of an employee of the
Corporation, is applicable to the case of present Petitioner.
9. Rule 2, Sub-Rule 3.25 of Rule 3, and Rule 10 of the Service Rules,
2017, which are germane to the present lis, are extracted below for ready
reference.
"2. APPLICATION OF THIS RULE
This Rule shall apply to
2.1 All employees recruited by the Corporation.
2.2 Consultants, person engaged for a limited tenure / purpose
shall be governed by the terms and conditions of their
appointment order.
The Board of Director reserves the power and authority to change
or amend these Rules as they may deem fit and proper.
The interpretation of these Rules by the Board of Director shall be
final and binding."
"3.25' Employee' means any person under the employment of
Odisha State Medical Corporation Ltd. other than "casual or
contingent" workers and includes a person on deputation to the
Corporation whose salary is chargeable to the funds of the
Corporation."
"10. PROBATION AND CONFIRMATION
10.1 All the employees directly recruited by the Corporation
shall be on probation for one year from the date of joining.
10.2 The appointing authority may extend the period of
probation "for a further period of one year" at a time
considering the ability, suitability and performance of the officer
and inform the employee concerned the reason for such
extension.
10.3 The appointing authority shall regularize the employee
concerned in the post on successful completion of probation
period on the basis of his ability, suitability and performances "by
a written order".
10.4 If during the period of probation or extended period thereof,
the performance, progress and conduct of the probationer is not
found satisfactory or up to the standard required for the post, the
probation shall be cancelled and he shall be terminated from
service by giving him one month's gross salary or one month's
salary in lieu thereof.
10.5 The probation period will be counted towards normal
increment, leave and seniority."
(Emphasis supplied)
10. It is also admitted fact from the pleadings and documents on
record that neither in terms of Clause 1 of the letter of appointment dated
10.03.2017 nor in terms of Sub-Rule 10.2 in Rule 10 of the Service Rules,
2017, the period of probation of the Petitioner was extended beyond one
year, i.e. after 13.03.2018, or even thereafter also. Rather, only after
completion of two years, the probation period of the Petitioner was
extended for a period of one year w.e.f. 14.03.2019 vide Office Order dated
12.03.2019, as at Annexure-2. No reason was also indicated vide such
office order for doing so, in terms of the relevant rules, as has been
extracted above.
11. It is also admitted case of the Corporation that the Service Rules,
2017 came into force w.e.f. 22.09.2017 and was made applicable to all the
employees recruited by the Corporation. Sub-Rule 3.8 in Rule 3 of the
Service Rules, 2017 defines "Probationer" means a person who is
provisionally employed on probation for a specific period with a view to
being considered for regular employment in the establishment of the
Corporation subject to satisfactory performance during probation period.
Sub-Rule 10.1 in Rule 10 mandates that all the employees directly recruited
by the Corporation shall be on probation for one year from the date of
joining. Sub-Rule 10.2 permits the Appointing Authority to extend the
period of probation for a further period of one year at a time considering
the ability, suitability and performance of the employee and inform the
employee concerned the reason for such extension and Sub-Rule 10.3
prescribes as to regularization of service of an employee so appointed in
the concerned post on successful completion of the probation period on the
basis of his ability, suitability and performance by a written order.
12. Admittedly, as revealed from the pleadings made by the Parties, so
also documents appended thereto, neither the period of probation of the
Petitioner was extended on completion of one year probation period w.e.f.
14.03.2018 in terms of Sub-Rule 10.2 nor even any communication was
made to the Petitioner to the said effect. When it was so extended only on
12.03.2019 i.e. after two years from the date of his appointment as a
probationer, no reason was intimated to the Petitioner justifying such
extension in terms of Sub-Rule 10.2 in Rule 10 of the Service Rules, 2017.
Law is well settled that any guideline, notification or service condition
imposed by the employer, which is not in consonance with the statute, has
no legal sanctity and cannot be applied. Admittedly, the terms of
employment imposed vide Clause 1 of the letter of appointment dated
10.03.2017 were never stipulated in the advertisement dated 26.10.2016.
Hence, this Court is of the view that the said Clause being contrary to the
terms of employment as detailed vide Rule 10 of the Service Rules, 2017,
which has already been reproduced above, should not have been given
effect to bring an end the services of the Petitioner after Service Rules,
2017 came into force w.e.f. 22.09.2017.
13. As relied upon by the learned Counsel for the Petitioner, the apex
Court, in State of Punjab (supra), vide Paragraphs 8 and 9 observed as
follows:
"8. The initial period of probation of the respondents ended on
October 1, 1958. By allowing the respondents to continue in their
posts thereafter without any express order of confirmation, the
competent authority must be taken to have extended the period of
probation up to October 1, 1960 by implication. But under the
proviso to R. 6 (3), the probationary period could not extend
beyond October 1, 1960. In view of the proviso to R. 6 (3), it is
not possible to presume that the competent authority extended
the probationary period after October 1, 1960, or that
thereafter the respondents continued to hold their posts as
probationers.
9. Immediately upon completion of the extended period of
probation on October 1, 1960, the appointing authority could
dispense with the services of the respondents if their work or
conduct during the period of probation was in the opinion of
the authority unsatisfactory. Instead of dispensing with their
services on completion of the extended period of probation, the
authority continued them in their posts until sometime in 1963,
and allowed them to draw annual increments of salary
including the increment which fell due on October 1, 1962. The
rules did not require them to pass any test or to fulfill any other
condition before confirmation. There was no compelling reason
for dispensing with their services and re-employing them as
temporary employees on October 1, 1960 and the High Court
rightly refused to draw the inference that they were so
discharged from services and reemployed. In these
circumstances, the High Court rightly held that the
respondents must be deemed to have been confirmed in their
posts. Though the appointing authority did not pass formal
orders of confirmation in writing, it should be presumed to
have passed orders of confirmation by so allowing them to
continue in their posts after October 1, 1960. After such
confirmation, the authority had no power to dispense with their
services under Rule 6 (3) on the ground that their work or
conduct during the period of probation was unsatisfactory. It
follows that on the dates of the impugned orders, the
respondents had the right to hold their posts. The impugned
orders deprived them of this right and amounted to removal
from service by way of punishment. The removal from service
could not be made without following the procedure laid down
in the Punjab Civil Services (Punishment and Appeal) Rules,
1952 and without conforming to the constitutional
requirements of Article 311 of the Constitution. As the
procedure laid down in the Punjab Civil Services (Punishment and
Appeal) Rules, 1952 was not followed and as the constitutional
protection of Article 311 was violated, the impugned orders were
rightly set aside by the High Court."
(Emphasis supplied)
In Om Prakash Maurya (supra), in Paragraph-5, the apex Court
held as follows:
"5. Learned counsel appearing for the U.P. Cooperative Sugar
Factories Federation urged that the U.P. Cooperative Societies
Employees Service Regulations, 1975 do not apply to the appellant
as he was an employee of the U.P. Cooperative Sugar Factories
Federation, as the condition of service of the appellant and other
employees of the U.P. Cooperative Sugar Factories Federation are
regulated by the U.P. Cooperative Sugar Factories Federation
Service Rules, 1976 framed by Cane Commissioner in exercise of
his powers under sub-section (1) of Section 121 of the Act
published in the U.P. Gazette dated September 4, 1976. Rule 3 of
the U.P. Cooperative Sugar Factories Federation Service Rules,
1976 (hereinafter referred to as the Federation Service Rules)
provides that these rules shall apply to all the employees of the
federation. Rule 5 provides that every employee shall be appointed
on probation for such period as the appointing authority may
specify and the period of probation may be extended by the
appointing authority from time to time; the rule does not prescribe
any limit on the extension of the probationary period. Rule 6
provides that upon satisfactory completion of probationary period
an employee shall be eligible for confirmation. Placing reliance on
Rule 5 learned counsel for the respondents urged that since there
was no order of confirmation the appellant's probationary period
stood extended, therefore, he could be reverted at any time to his
substantive post. It is true that Rule 5 of the Federation Service
Rules does not place any restriction on the appointing authority's
power to extend the probationary period, it may extend the
probationary period for an unlimited period and in the absence of
confirmation order the employee shall continue to be on probation
for indefinite period. It is well settled that where appointment on
promotion is made on probation for a specific period and the
employee is allowed to continue in the post after expiry of the
probationary period without any specific order of confirmation he
would be deemed to continue on probation provided the rules do
not provide contrary to it. If Rule 5 applies to the appellant he
could not require the status of a confirmed employee in the post of
Commercial Officer and he could legally be reverted to his
substantive post."
(Emphasis supplied)
In State of Gujarat (supra), the apex Court in Paragraphs 6, 7 and
8 has held as follows:
"6. While the Probation Rules prescribed an initial period of two
years of probation it did not provide any optimum period of
probation. Administrative instructions were issued by the Ministry
of Home Affairs, Government of India, on March 16, 1973,
indicating the guidelines to be follows in the matter. The relevant
portion thereof may be extracted:
(ii) It is not desirable that a member of the service should
be kept on probation for years as happens occasionally at
present. Save for exceptional reasons, the period of
probation should not, therefore, be extended by more
than one year and no member of the service should, by
convention, be kept on probation for more than double
the normal period i.e. four years. Accordingly, a
probationer, who does not complete the probationers'
final examination within a period of four years, should
ordinarily be discharged from the service.
7. It is not disputed that the circular of the Home Ministry was
with reference to the Indian Police Service (Probation) Rules. We
have not been shown that these instructions run counter to the rules.
It is well settled that within the limits of executive powers
under the constitutional scheme, it is open to the appropriate
government to issue instructions to cover the gap where there
be any vacuum or lacuna. Since instructions do not run counter
to the rules in existence, the validity of the instructions cannot
be disputed. Reliance has been placed in the courts below on the
constitution Bench Judgment of this Court, and which is reported in
Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 : AIR
1967 SC 1910, where Ramaswami, J. speaking for the court stated
thus :
We are unable to accept this argument as correct. It is true that
there is no specific provision in the Rules laying down the
principle of promotion of junior or senior grade officers to
selection grade posts. But that does not mean that till statutory
rules are framed in this behalf the Government cannot issue
administrative instructions regarding the principle to be
followed in promotions of the officers concerned to selection
grade posts. It is true 'that Government cannot amend or
supersede statutory rules by administrative instructions,
but if the rules are silent on any particular point
Government can fill up the gaps and supplement the rules
and issue instructions not inconsistent with the rules
already framed.
8. We are of the view that the rules read with instructions create a
situation as arose for consideration by this Court in the case of
State of Punjab v. Dharam Single. The Constitution Bench of this
Court in that case interpreted the Punjab Education Service
(Provincialised Cadre) Class III Rules and found that there was a
maximum limit of three years beyond which the period of
probation could not be extended. When an officer appointed
initially on probation was found to be continuing in service beyond
three years without a written order of confirmation, this Court held
that it tantamounts to confirmation. In view of what we have stated
above we are in agreement with the High Court about the combined
effect of the rules and instructions. We hold that the respondent
stood confirmed in the cadre on the relevant date when he was
discharged. For a confirmed office in the cadre, the Probation Rules
did not apply and therefore, proceedings in accordance with law,
were necessary to terminate service. That exactly was the ratio of
the decision in Moti Ram Deka v. General Manager, N.E.F.
Railways, Maligaon, Pandu, (1964) 5 SCR 683 : AIR 1964 SC 600.
On the analysis indicated above, the net result, therefore, is that
respondent 1 had become a confirmed officer of the Gujarat I.P.S.
cadre and under Rule 12 (bb) of the Probation Rules his services
could not be brought to an end by the impugned order of
discharge."
(Emphasis supplied)
In M.K. Agarwal (supra), the apex Court in Paragraph-8 held as
follows:
"8. The first point need not detain us. The period of the probation
was one year, in the first instance. The employer could extend it
only for a further period of six more months. The limitation on the
power of the employer to extend the probation beyond 18
months coupled with the further requirement that at the end of
it the services of the probationer should either be confirmed or
discharged render the inference inescapable that if the
probationer was not discharged at or before the expiry of the
maximum period of probation, then there would be an implied
confirmation as there was no statutory indication as to what
should follow in the absence of express confirmation at the end
of even the maximum permissible period of probation. In cases
where, as here, these conditions coalesce, it has been held, there
would be confirmation by implication."
In Washim Beg (supra), in Paragraph-15, the apex Court held as
follows:
"15. Whether an employee at the end of the probationary period
automatically gets confirmation in the post or whether an order of
confirmation or any specific act on the part of the employer
confirming the employee is necessary, will depend upon the
provisions in the relevant Service Rules relating to probation and
confirmation. There are broadly two sets of authorities of this
Court dealing with this question. In those cases where the Rules
provide for a maximum period of probation beyond which
probation cannot be extended, this Court has held that at the
end of the maximum probationary period there will be a deemed
confirmation of the employee unless Rules provide to the
contrary. This is the line of cases starting with State of Punjab v.
Dharam Singh, M.K. Agarwal v. Gurgaon Gramin Bank, Om
Prakash Maurya v. U.P. Coop. Sugar Factories Federation, State of
Gujarat v. Akhilesh C. Bhargav."
(Emphasis supplied)
14. As cited by learned Counsel for the Opposite Party No.1-
Corporation, in G.S. Ramaswamy (supra), in Paragraph-8, the Constitution
Bench of apex Court held as follows:
"8. It has further been urged on the basis of R.486 that as the
petitioners had worked for more than two years on probation, they
became automatically confirmed under the said Rule, and reliance is
placed on the following sentence in R. 486, namely, "promoted
officers will be confirmed at the end of their probationary period if
they have given satisfaction." The law on the question has been
settled by this Court in Sukhbans Singh v. State of Punjab, AIR 1962
SC 1711. It has been held in that case that a probationer cannot
after the expiry of the probationary period, automatically
acquire the status of a permanent member of a service, unless of
course the rules under which he is appointed expressly provide
for such a result. Therefore even though a probationer may have
continued to act in the post to which he is appointed on
probation for more than the initial period of probation, he
cannot become a permanent servant merely because of efflux of
time, unless the Rules of service which govern him specifically
lay down that the probationer will be automatically confirmed
after the initial period of probation is over. It is contended on
behalf of the petitioners before us that the part of R. 486 (which we
have set out above) expressly provides for automatic confirmation
after the period of probation is over. We are of opinion that there is
no force in this contention. It is true that the words used in the
sentence set out above are not that promoted officers will be eligible
or qualified for promotion at the end of their probationary period
which are the words to be often found in the Rules in such cases;
even so, though this part of R. 486 says that "promoted officers will
be confirmed at the end of their probationary period", it is qualified
by the words "if they have given satisfaction". Clearly therefore the
Rule does not contemplate automatic confirmation after the
probationary period of two years, for a promoted officer can only be
confirmed under this Rule if he has given satisfaction. This condition
of giving satisfaction must be fulfilled before a promoted officer can
be confirmed under this rule and this condition obviously means that
the authority competent to confirm him must pass an order to the
effect that the probationary officer has given satisfaction and is,
therefore, confirmed. The petitioners, therefore, cannot claim that
they must be treated as confirmed circle inspectors simply because
they have worked for more than two years on probation; they can
only become confirmed circle inspectors if an order to that effect has
been passed even under this rule by the competent authority. The
first contention, therefore, that the petitioners before us have an
indefeasible right to promotion once their names are put in the
eligibility list and that they are entitled to continue as circle
inspectors thereafter if they have once been promoted, on temporary
or officiating basis, cannot be sustained."
(Emphasis supplied)
In State of U.P. (supra), in Paragraph-6, the apex Court held as
follows:
"6. The scheme of the rules is clear : confirmation in the post which
a probationer is holding does not result merely from the expiry of
the period of probation, and so long as the order of confirmation is
not made, the holder of the post remains a probationer. It has been
held by this Court that when a first appointment or promotion is
made on probation for a specified period and the employee is
allowed to continue in the post, after the expiry of the said period
without any specific order of confirmation he continues as a
probationer only and acquires no substantive right to hold the post.
If the order of appointment itself states that at the end of the period
of probation the appointee will stand confirmed in the absence of
any order to the contrary, the appointee will acquire a substantive
right to the post even without an order of confirmation. In all other
cases, in the absence of such an order or in the absence of such a
service rule, an express order of confirmation is necessary to give
him such a right. Where after the period of probation an appointee
is allowed to continue in the post without an order of confirmation,
the only possible view to take is that by implication the period of
probation has been extended, and it is not a correct proposition to
state that an appointee should be deemed to be confirmed from the
mere fact that he is allowed to continue after the end of the period
of probation. See Chief Conservator of Forests, U. P. Nainital v. D.
A. Lyall, C. A. No. 259 of 1963, dated 24-2-1965 (SC); Sukhbans
Singh v. State of Punjab, AIR 1962 SC 1711 and Accountant
General, Madhya Pradesh, Gwalior v. Beniprasad Bhatnagar, C.A.
No. 548 of 1962, dated 23-1-1964 (SC)"
In High Court of M.P. through Registrar (supra), the apex Court
in Paragraph-11 held as follows:
"11. The question of deemed confirmation in service jurisprudence,
which is dependent upon the language of the relevant service rules,
has been the subject matter of consideration before this Court, times
without number in various decisions and there are three lines of
cases on this point. One line of cases is where in the service rules or
in the letter of appointment a period of probation is specified and
power to extend the same is also conferred upon the authority
without prescribing any maximum period of probation and if the
officer is continued beyond the prescribed or extended period, he
cannot be deemed to be confirmed. In such cases there is no bar
against termination if any point of time after expiry of the period of
probation. The other line of cases is that where while there is a
provision in the rules for initial probation and extension thereof,
a maximum period for such extension is also provided beyond
which it is not permissible to extend probation. The inference in
such cases is that the officer concerned is deemed to have been
confirmed upon expiry of the maximum period of probation in
case before its expiry the order of termination has not been
passed. The last line of cases is where, though under the rules
maximum period of probation is prescribed, but the same
requires a specific act on the part of the employer by issuing an
order of confirmation and of passing a test for the purposes of
confirmation. In such cases, even if the maximum period of
probation has expired and neither any order of confirmation has
been passed nor has the person concerned passed the requisites
test, he cannot be deemed to have been confirmed merely
because the said period has expired."
(Emphasis supplied)
In Registrar, High Court of Gujarat (supra), in Paragraph-26, the
apex Court observed as follows:
"26. A large number of authorities were cited before us by both the
parties. However, it is not necessary to go into the details of all
those cases for the simple reason that sub-rule (4) of Rule 5 of the
Rules is in pari materia with the Rule which was under
consideration in the case of State of Maharashtra v. Veerappa R.
Saboji and we find that even if the period of two years expires and
the probationer is allowed to continue after a period of two years,
automatic confirmation cannot be claimed as a matter of right
because in terms of the Rules, work has to be satisfactory which is
a prerequisite or precondition for confirmation and, therefore, even
if the probationer is allowed to continue beyond the period of two
years as mentioned in the Rule, there is no question of deemed
confirmation. The language of the Rule itself excludes any
chance of giving deemed or automatic confirmation because the
confirmation is to be ordered if there is a vacancy and if the
work is found to be satisfactory. There is no question of
confirmation and, therefore, deemed confirmation, in the light of
the language of this Rule, is ruled out. We are, therefore, of the
opinion that the argument advanced by learned counsel for the
respondent on this aspect has no merits and no leg to stand. The
learned Single Judge and the learned Judges of the Division Bench
have rightly come to the conclusion that there is no automatic
confirmation on the expiry of the period of two years and on the
expiry of the said period of two years, the confirmation order can
be passed only if there is vacancy and the work is found to be
satisfactory. The Rule also does not say that the two years'
period of probation, as mentioned in the Rule, is the maximum
period of probation and the probation cannot be extended
beyond the period of two years. We are, therefore, of the opinion
that there is no question of automatic or deemed confirmation, as
contended by the learned counsel for the respondent. We, therefore,
answer this issue in the negative and against the respondent."
(Emphasis supplied)
In Kazia Mohammed Muzzammil (supra), in Paragraphs 46,
47 and 48, the apex Court held as follows:
"46. On a clear analysis of the above enunciated law, particularly, the
seven-Judge Bench judgment of this Court in Samsher Singh and the
three-Judge Bench judgments, which are certainly the larger Benches
and are binding on us, the courts have taken the view with reference to
the facts and relevant rules involved in those cases that the principle of
"automatic" or "deemed confirmation" would not be attracted. The
pith and substance of the stated principles of law is that it will be
the facts and the rules, which will have to be examined by the
courts as a condition precedent to the application of the dictum
stated in any of the line of cases afore noticed.
47. There can be cases where the rules require a definite act on the part
of the employer before an officer on probation can be confirmed. In
other words, there may a rule or regulation requiring the
competent authority to examine the suitability of the probationer
and then upon recording its satisfaction issue an order of
confirmation. Where the rules are of this nature the question of
automatic confirmation would not even arise. Of course, every
authority is expected to act properly and expeditiously. It cannot
and ought not to keep issuance of such order in abeyance without
any reason or justification. While there could be some other cases
where the rules do not contemplate issuance of such a specific order in
writing but merely require that there will not be any automatic
confirmation or some acts, other than issuance of specific orders, are
required to be performed by the parties, even in those cases it is
difficult to attract the application of this doctrine.
48. However, there will be cases where not only such specific rules, as
noticed above, are absent but the rules specifically prohibit extension
of the period of probation or even specifically provide that upon expiry
of that period he shall attain the status of a temporary or a confirmed
employee. In such cases, again, two situations would rise: one, that he
would attain the status of an employee being eligible for confirmation
and second, that actually he will attain the status of a confirmed
employee. The courts have repeatedly held that it may not be possible
to prescribe a straitjacket formula of universal implementation for all
cases involving such questions. It will always depend upon the facts of
a case and the relevant rules applicable to that service."
(Emphasis supplied)
15. From the pleadings on record so also submissions made by the
learned Counsel for the Parties, this Court comes to the following
irresistible conclusions.
15.1 The post of Manager-Procurement (Drugs and Surgical) is a single
unreserved post and advertisement was made to fill up the said post along
with other posts.
15.2. There was no such mention in the advertisement that the person
who will be selected for appointment in the post of Manager-Procurement
(Drugs and Surgical) shall be appointed on probation basis first and on
successful completion of the probation period, the candidate will be
permanently absorbed as per the offer of appointment dated 10.03.2017.
15.3 Though it was mentioned that the Petitioner will be on probation
for one year from the date of his joining and the same can be extended for a
further period of one year or more as per satisfaction of the authority, there
was no communication by the Authority concerned for extension of
probation period further beyond one year from the date of joining. Rather,
after completion of two years, a communication was made vide Office
Order dated 12.03.2019 extending the probation period of the Petitioner for
a further period of one year without indicating therein the reasons for doing
so.
15.4. Till completion of two years or more, it was never communicated to
the Petitioner till 25.07.2019 as to extension of his probation period on the
ground of unsatisfactory performance.
15.5. Even in the Office Order dated 25.07.2019, which is impugned in
the present Writ Petition, there is no mention as to termination of services of
the Petitioner during the extended period of probation of further one year i.e.
on the 3rd year on the ground of unsatisfactory performance.
15.6. After Service Rules, 2017 came into effect from 22.09.2017, the
same became applicable to all the employees recruited by the Corporation,
including the present Petitioner, who were already on the roll of the
Corporation as on the said date in terms of Rule 2.1 read with Rule 3.25 of
the said Rules,2017.
15.7. As per Rule 3.8 of the Service Rules, 2017, Probationer means a
person, who is provisionally employed on probation for a specific period
with a view to being considered for regular employment in the establishment
of the Corporation subject to satisfactory performance during probation
period.
15.8. As per Rule 10.1 of the said Rules, 2017, all the employees directly
recruited by the Corporation shall be on probation for one year from the date
of joining.
15.9. As per Rule 10.2 of the said Rules, 2017 the appointing authority
may extend the period of probation for a further period of one year at a time
considering the ability, suitability and performance of the officer and inform
the employee concerned the reason for such extension.
15.10. As per Rule 10.3, the appointing authority shall regularize the
employee concerned in the post on successful completion of the probation
period on the basis of his ability, suitability and performance by a written
order.
15.11. Though Rule 10.2 of the Rules, 2017 mandates to inform the
employee concerned the reason for such extension by extending the period
of probation for a further period of one year, till conclusion of two years of
probation and thereafter also, till issuance of the impugned Office Order
dated 25.07.2019, no communication was made to the Petitioner indicating
therein the reason for such extension.
15.12. No reason was assigned in the Office Order dated 12.03.2019,
while extending the period of probation of the Petitioner for a further period
of one year on 12.03.2019 i.e. after completion of two years of probation
period of the Petitioner.
15.13. The said Office Order for extension of probation period of the
Petitioner for a further period of one year was issued after completion of two
years of probation period from the date of first engagement of the Petitioner
as a probationer.
15.14. The conduct of the Opposite Party No.1-Management well proves
that such action to bring to end services of the Petitioner has been taken as a
punitive measure in the guise of invoking the terms of engagement detailed
in the offer of appointment dated 10.03.2017, though the clause in the letter
of appointment became inapplicable after the Service Rules, 2017 came into
effect immediately thereafter.
15.15. In the order of termination dated 25.07.2019 also, it has been
indicated that same was so done because of the unsatisfactory performance
of the Petitioner during his period of probation.
15.16. Though a stand has been taken in the Counter Affidavit that the
performance of the Petitioner was unsatisfactory, no document has been
filed before this Court to demonstrate that the performance of the Petitioner
as a probationer was unsatisfactory.
15.17. The Petitioner was asked for an explanation regarding discrepancy
in the experience certificate and over lapping in the period of service. In
response thereto the Petitioner gave a detailed explanation on 16.04.2019
clearly explaining about the alleged discrepancy and over lapping period of
service. Thereafter no disciplinary proceeding was initiated against the
Petitioner for the alleged discrepancy/misconduct and thereafter also till the
impugned Office Order dated 25.07.2019 was issued terminating the
services of the Petitioner invoking Clause 1 of the appointment letter dated
10.03.2017, though the Petitioner was governed by Rule 3 of the Service
Rules, 2017 as on the date of issuance of the said Office Order dated
25.07.2019.
16. Admittedly, vide letter of appointment dated 10.03.2017, the
Petitioner was offered the post of Manager-Procurement (Drugs & Surgical)
in the Corporation with an assurance that depending on satisfactory
performance and conduct during the probation period, his continuance and
regularization in the said post will be decided. It was further assured that on
successful completion of probation period, he will be confirmed in the
concerned post and the probation period will be counted towards normal
annual increment, leave and seniority. The Corporation took a stand in the
Counter as to unsatisfactory performance of the Petitioner during probation
period but failed to demonstrate before this Court by producing any
documentary evidence to substantiate the said stand. Rather, it was admitted
that no such communication was made to the Petitioner in terms of Rule10
(2) of the Rules, 2017, while extending the probation period after two years
from the date of his appointment. As no communication was made to the
Petitioner either after completion of one year of service from the date of
joining and thereafter also till 25.07.2019 i.e. the date of termination of his
service and in the said letter also it has not been indicated that it was so done
because of his unsatisfactory performance, his case deserves to be
considered for the purpose of permanent absorption/regularization in the said
post of Manager-Procurement (Drugs and Surgical) by issuing a written
order to the said effect in terms of Rule 10.3 of the Service Rules, 2017.
17. In view of the above conclusions so also the Service Rules, 2017 of
the Corporation and the settled position of law as detailed above, this Court
is of the view that the action of the Corporation issuing the impugned Order
of termination dated 25.07.2019 invoking Clause 1 of the appointment letter
dated 10.03.2017 is illegal, unjustified, contrary to the Service Rules of the
Corporation and deserves to be set aside. Accordingly, the Office Order
dated 25.07.2019, as at Annexure-3, is hereby set aside.
18. Accordingly, the Opposite Party No.1-Corporation is directed to
reinstate the Petitioner in the post of Manager-Procurement (Drugs and
Surgical) and issue office order to regularize his service in terms of Rule
10.3 of the Service Rules, 2017 on notional basis with effect from the date of
completion of two years of service in the post of Manager-Procurement
(Drugs and Surgical), as there is no such provision under Rules, 2017 to
extend the probation period beyond 2 years and before and after completion
of the said probation period of two years and thereafter also no
communication was made to the Petitioner as to his unsatisfactory
performance, as has been detailed above.
It is further directed that on regularization of the service of the
Petitioner in the Corporation, the probation period of the Petitioner shall be
counted towards normal increment, leave and seniority in terms of Rule 10.5
of the said Rules, 2017 so also in terms of assurance given vide letter of
appointment dated 10.03.2017. The period for which the Petitioner was
forced to remain unemployed/out of employment, shall also be counted
towards his seniority and increment to be paid in terms of Rule 12 of the said
Rules, 2017. Petitioner's pay on permanent absorption/regularization shall
be fixed and paid accordingly.
19. Because of the illegality and irregularity committed by the
Corporation, as detailed above, for which the Petitioner was being
compelled to venture into unnecessary litigation and harassment, a cost of
Rs. 20,000/- (Rupees twenty thousand) is awarded to compensate the
hardship caused to the Petitioner, to be paid by the Corporation.
20. The entire exercise, as directed above, shall be completed within a
period of four weeks from the date of communication/production of certified
copy of this Judgment.
21. Accordingly, the Writ Petition is allowed and stands disposed of.
(S.K. MISHRA)
JUDGE
Signature Not Verified
Digitally Signed Orissa High Court, Cuttack
Signed by: PADMA CHARAN Dated,
DASH the 5th October, 2023/PCD
Designation: Personal Assistant
Reason: Authentication
Location: orissa high court cuttack
Date: 06-Oct-2023 12:50:47
